Citation Nr: 18154190
Decision Date: 11/30/18	Archive Date: 11/29/18

DOCKET NO. 10-36 437
DATE:	November 30, 2018
ORDER
Service connection for a right hip disability is denied.
A disability rating in excess of 20 percent for service-connected right shoulder strain with degenerative joint disease is denied.
REMANDED
The claim for extension of a temporary total rating based upon convalescence for his service-connected right shoulder disability, currently in effect from November 1, 2011 to April 30, 2012, is remanded.   
The claim for an initial evaluation in excess of 10 percent for service-connected left knee disability is remanded
The claim for entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
FINDINGS OF FACT
1.  The Veteran does not have a right hip disability that either began during, or was otherwise caused by, his military service, or that was caused or aggravated by a service-connected disability.
2.  The Veteran’s service-connected right shoulder strain with degenerative joint disease is shown to have been productive of pain, and some limitation of motion, but not ankylosis of the scapulohumeral articulation, limitation of motion of the arm midway between the side and shoulder level, a malunion or recurrent dislocation of the humerus, or a nonunion or dislocation of the clavicle or scapula.  
CONCLUSIONS OF LAW
1.  The criteria for service connection for a right hip disability have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
2.  The criteria for a disability rating in excess of 20 percent for service-connected right shoulder strain with degenerative joint disease, have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5200, 5201, 5202.






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active military duty from August 1965 to April 1972.  
Although additional evidence has been received that is of record and which has not been reviewed by the Agency of Original Jurisdiction (AOJ), a waiver of AOJ review, received in October 2018, is of record.  See 38 C.F.R. § 20.1304. 
1.  Service connection for a right hip disability is denied. 
The Veteran asserts that he has a right hip disability that should be service connected.  He argues that his right hip disability has been caused by service, or caused or aggravated by his service-connected knee disability.  
In September 2016, the Veteran filed his claim for service connection.  In January 2017, the RO denied the claim.  
In May 2018, the Board remanded the claim for additional development.  
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303 (d). 
With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)).  A grant of service connection under 38 C.F.R. § 3.303 (b) does not require proof of the nexus element; it is presumed.  Id.  
Service connection may also be granted for arteriosclerosis, epilepsies, and an organic disease of the nervous system, when manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  
In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id. 
Service connection is currently in effect for: right knee arthroplasty, right shoulder strain with degenerative joint disease, postoperative deviated nasal septum, left knee degenerative arthritis with instability, “residuals, fracture, right radius,” bilateral knee scars, and right shoulder scars.  
The Veteran’s service treatment records do show any complaints, treatment, or diagnoses involving his right hip.  See also Veteran’s separation examination report, dated in February 1972. 
The post-service medical evidence includes VA progress notes, which show complaints of hip pain as early as 2011.  In September 2016, X-ray findings note severe degenerative changes at the right hip.  A June 2018 progress note shows that the examiner stated, “He believes arthritis in his right hip is secondary to long-term arthritis in his right knee, which is difficult to rule out.”
A VA disability benefits questionnaire (DBQ), dated December 2, 2016, shows the following: The diagnosis was right hip degenerative arthritis, with a date of diagnosis of 2016.  On examination, there was a limitation of motion in the right hip, as well as some pain and functional loss.  The left hip had a normal range of motion, with no finding of pain or functional loss.  The examiner noted that the Veteran’s gait abnormality due to his knee was not severe.  The Veteran has a history of participation in triathlons, which can contribute to joint problems, therefore, to comment on a possible relationship between his knee and his hip would require resort to speculation.  However, in an associated opinion, dated December 20, 2016, the examiner concluded that the Veteran’s right hip condition is less likely as not (less than 50 percent probability) proximately due to, or the result of, his service-connected condition.  The examiner explained that the Veteran’s gait abnormality is not severe.  
Private treatment records, dated in January 2018, note treatment for right hip pain.  On examination, the Veteran had a slight limp while walking, with some pain with forward flexion of his hip against gravity and some slight restriction of rotation.  The reports note advanced osteoarthritis of the right hip.  The examiner stated, “I have told him that this could be as a result of injuries that occurred in the military or just as likely from wear and tear.”
In May 2018, the Board remanded the claim for a supplemental opinion.  
A VA hip and thigh DBQ, dated in August 2018, shows the following: On examination, there was a limitation of motion in the right hip, as well as some pain and functional loss.  The left hip had a normal range of motion, with no finding of pain or functional loss.  The diagnosis was osteoarthritis of the right hip; the date of diagnosis was 2016.  The examiner concluded that the Veteran’s right hip condition is less likely as not (less than 50 percent probability) incurred in, or caused by, his service.  The examiner explained that there is no evidence of hip problems during service, and that he was active for years after service, and prior to his hip problems.  The examiner further concluded that the Veteran’s right hip condition is less likely than not proximately due to, or the result of, his service-connected condition.  The examiner explained that there is no evidence that his service-connected knee problem is the etiology of his right hip degenerative arthritis, and that the Veteran was active on his legs for years.  Finally, the examiner concluded that a baseline level of severity of the Veteran’s right hip condition could not be determined, and that aggravation was not found.  The examiner explained that it would require a resort to speculation, and that the Veteran has a degenerative hip arthritis that is a natural progression of aging, and that although his right knee has been replaced, there is no medical evidence that his knee has affected his hip.  
The Board finds that the claim must be denied.  The Veteran is not shown to have been treated for right hip symptoms during service, nor were there any findings or diagnoses for the right hip.  Right hip symptoms were not reported upon separation from service, nor was a right hip condition noted.  Following separation from service, the earliest medical evidence of right hip symptoms is dated no earlier than 2011.  This is approximately 39 years after separation from service.  There is no competent and probative evidence to show that the Veteran currently has a right hip disability due to his service.  The only competent opinion of record is the August 2018 VA opinion, and this opinion weighs against the claim.  Accordingly, service connection for a right hip disability on a direct basis must be denied.  See 38 C.F.R. § 3.303. 
There is no evidence to show that the Veteran had right hip arthritis within one year of separation from service.  Therefore, service connection on a presumptive basis is not warranted.  See 38 C.F.R. §§ 3.307, 3.309.  
Finally, there is no competent and probative evidence to show that the Veteran has a right hip disability that was caused or aggravated by service-connected disability.  The only competent opinions of record are the December 2016 and August 2018 VA opinions, and these opinions weigh against the claim.  In particular, the August 2018 opinion is considered highly probative evidence against the claim, as it is shown to have been based on a review of the Veteran’s claim file, and it is accompanied by a sufficiently detailed explanation.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Accordingly, service connection for a right hip disability on a direct basis must be denied.  
In reaching this decision, the Board has considered the notation in the private medical records, in which the examiner stated, “I have told him that this could be as a result of injuries that occurred in the military or just as likely from wear and tear.”  However, this notation is afforded no probative value, as it is not shown to have been based on a review of the Veteran’s claims file, or any other detailed and reliable medical evidence, and it is equivocal in its terms.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  For those same reasons, the notation in the June 2018 VA progress note is afforded no probative value.  Id.   
The Board has considered the article received from the Veteran in January 2017.  This article states that osteoarthritis is the most common joint disease in humans, and that it can be due to a number of causes, to include trauma and mechanical factors.  It states that the most striking changes in osteoarthritis are usually seen in load-bearing areas of the articular cartilage.  However, this article is not sufficiently probative to warrant a grant of the claim, as it is generic literature which does not discuss the facts reasonably approximating, and relevant to, the Veteran’s claim, to include his aforementioned medical history.  There is nothing in this article that provides a reasonable basis to warrant a grant of the claim, and the Board finds that its probative value is outweighed by the August 2018 VA opinion.  Therefore, this article does not provide a sufficient basis to find that there is a causal relationship between the Veteran’s service, or service-connected disability, and his right hip disability.  Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  
The issue on appeal is based on the contention that a right hip disability was caused by service, or caused or aggravated by a service-connected disability.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The medical records have been discussed.  The Board has determined that the Veteran’s right hip disability is not related to his service, nor is it related to a service-connected disability.  Given the foregoing, the Board finds that the medical evidence outweighs the Veteran’s contentions to the effect that a right hip disability was caused by service, or that it was caused or aggravated by a service-connected disability.  
2.  Entitlement to an increased rating for a right shoulder disability is denied.  
In June 1972, the RO granted service connection for right shoulder strain, evaluated as noncompensable.  In March 2011, the RO increased the disability rating to 20 percent.  
In February 2014, the RO denied a claim for a disability rating in excess of 20 percent for the right shoulder.  There was no appeal, and the RO’s decision became final.  See 38 U.S.C. § 7105(c).
In September 2016, the RO again denied a claim for a disability rating in excess of 20 percent.  The Veteran has appealed.  
Disability evaluations are determined by comparing the veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran’s favor.  38 U.S.C. § 5107 (b). 
The Veteran’s right shoulder disability has been evaluated by the RO under Diagnostic Codes 5202-5003.  See 38 C.F.R. § 4.27.  This hyphenated diagnostic code may be read to indicate that impairment of the humerus is the service-connected disorder, and it is rated as if the residual condition is limitation of motion of the arm under Diagnostic Code 5003.
The Board must determine whether a higher evaluation is warranted under any applicable diagnostic code.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 
Therefore, the following diagnostic codes are relevant: 
The medical evidence shows that the Veteran is right-handed.  See e.g., June 2016 VA shoulder and arm conditions DBQ.  Therefore, for all diagnostic codes discussed below, the ratings discussed are for the major (right) shoulder.
Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.
Under 38 C.F.R. § 4.71a, DC 5200, ankylosis of scapulohumeral articulation, a 30 percent rating is warranted for favorable abduction to 60 degrees, can reach mouth and head.
Under 38 C.F.R. § 4.71a, DC 5201, limitation of motion of the arm, a 20 percent rating is warranted for limitation of motion of the arm at shoulder level.  A 30 percent rating is warranted for limitation of motion midway between the side and shoulder level.  Id.
Under 38 C.F.R. § 4.71a, DC 5202, other impairment of the humerus, a 20 percent rating is warranted for malunion with moderate deformity, or, with recurrent dislocation of at scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, and a 30 percent rating is warranted for malunion with marked deformity, or, recurrent dislocation of at scapulohumeral joint, with frequent episodes and guarding of all arm movements.
The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71.  These descriptions indicate that normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. 
The plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under DC 5201 for each arm that suffers from limited motion of the shoulder joint.  Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).  The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to “limitation of motion of” the arm.  See 38 C.F.R. § 4.71a, DC 5201.  The plain meaning of DC 5201, therefore, is that any “limitation of motion of” a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm’s motion is limited.  Yonek, 772 F.3d at 1359.
The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.
In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.  The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially “absurd results.”  Id. at 10-11.
Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999). 
Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).
A VA shoulder and arm conditions DBQ, dated in June 2016, shows that on examination, the Veteran’s right shoulder had flexion from 0 to 170 degrees, abduction from 0 to 100 degrees, external rotation from 0 to 75 degrees, and internal rotation from 0 to 90 degrees.  There was pain at the extremes of flexion, abduction, external rotation, and at 50 degrees of posterior flexion.  The Veteran was noted to have acromioclavicular DJD (degenerative joint disease) that did not affect his range of motion at the shoulder (glenohumeral) joint.  There was no loss of head (flail shoulder), nonunion (false flail shoulder) or fibrous union of the humerus.  There was no malunion of the humerus with moderate or marked deformity.     
The Board finds that the criteria for a rating in excess of 20 percent are not shown to have been met.  There is no evidence to show that the Veteran’s right shoulder is productive of ankylosis of scapulohumeral articulation, that abduction is limited to 60 degrees, or that it has a limitation of motion of the arm to midway between the side and shoulder level.  In addition, there is no evidence to show a malunion of the right humerus, or recurrent dislocation of the right scapulohumeral joint.  Accordingly, the criteria for a rating in excess of 20 percent under DC’s 5200, 5201, and 5202 are not shown to have been met for the right shoulder, and a rating in excess of 20 percent is not warranted. 
With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain.  See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998).
The June 2016 VA DBQ shows that the Veteran reported that he had flare-ups, during which he will modify his activities and work at a slower pace.  He complained of pain, weakness, and loss of motion during flare-ups, but denied incoordination.  It was noted that he had some difficulty with overhead work due to loss of abduction.  There was pain on examination, but it did not result in functional loss.   There was no pain with weight bearing.  The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional functional loss or loss of range of motion.  There was functional loss due to pain, fatigue, weakness, and lack of endurance, but loss in terms of range of motion could not be estimated because the Veteran was not specific enough in his responses.  Functional ability during flare-ups or following repeated use over time was significantly limited, but this limitation could not be estimated in terms of loss of motion because it would require a resort to speculation because the Veteran was not acutely flared and he was not specific enough in his history.  There was no reduction in muscle strength; right shoulder forward flexion and abduction strength was 5/5.  X-rays were noted to show acromioclavicular degenerative joint disease.  Motion of the glenohumeral joint was not affected by a clavicle or scapula condition.  There was no laxity.  There was pain on extremes of motion, and at 50 degrees of posterior extension and posterior flexion.  There was an impact on his ability to perform any type of occupational task, to the extent that his restrictions are activity-related (overhead activities), and he can lift moderate weight if lifting waist high.  He has some problems with activities requiring internal rotation of the shoulder (posterior flexion).  There were no sedentary restrictions; he could perform sedentary type work with restricted overhead use.  He has good strength and range of motion in his shoulder.  The problems with his shoulder mainly arise when working overhead.        
VA progress notes show complaints of right shoulder pain.  The Veteran reported that he participates in yoga, biking and swimming.  See e.g., reports, dated in February and June of 2018.  A report, dated in August 2016, notes that the Veteran had a normal range of motion in his shoulders (specific degrees of motion were not provided).  There are findings of 5/5 strength in the upper extremities (July 2016 and July 2018), and that the ranges of motion in the upper extremities were WFL (within full limits) (July 2018).  
In summary, while there is some evidence of pain, and limitation of motion, the evidence does not otherwise show functional loss due to pain to warrant a rating in excess of 20 percent.  Pain alone does not constitute a functional loss under VA regulations.  Mitchell.  Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Id. at 43; see also 38 C.F.R. § 4.40.  Here, even considering the Veteran’s pain, he is shown to have had at least 100 degrees of forward flexion, which is well in excess of favorable abduction to 60 degrees or a limitation of motion midway between the side and shoulder level, as required for a rating in excess of 20 percent.  There is no evidence of additional loss in the range of motion following repetitive use testing.  Strength has been shown to be 5/5 upon both extension and flexion.  There is no evidence of muscle atrophy.  The Board notes that, to the extent that the VA examiner was unable to estimate function loss in degrees of motion, there is a sufficient explanation as to why this could not be provided.  See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).  When the range of motion findings, and the evidence showing functional loss are considered, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and muscle atrophy, the Board finds that when the ranges of motion in the right shoulder are considered together with the evidence of functional loss due to shoulder pathology, the evidence does not support a conclusion that the loss of motion in the right shoulder more nearly approximates the criteria for a rating in excess of 20 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45.  
The Veteran is competent to report his right shoulder symptoms, as these observations come to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant an increased rating.  However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The examination also took into account the Veteran’s competent (subjective) statements with regard to the severity of his disability.  The Board therefore finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran’s assertions as to the severity of his disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). 
The Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant’s claim, such rule is not for application.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
On November 1, 2011, the Veteran underwent right shoulder surgery, specifically, a right shoulder arthroscopy with rotator cuff repair, subacromial decompression, and biceps tenotomy.    
In November 2011, the RO granted a temporary total evaluation for the Veteran’s right shoulder disability for the period from November 1, 2011 to December 31, 2011, followed by a 20 percent evaluation effective January 1, 2012.  See 38 C.F.R. § 4.29.  The Veteran filed a notice of disagreement as to the issue of entitlement to an extension of his temporary total rating based upon convalescence for his service-connected right shoulder disability.  
In October 2014, the Board remanded the issue of entitlement to an extension of his temporary total rating based upon convalescence for his service-connected right shoulder disability for an issuance of a Statement of the Case.  Manlincon v. West, 12 Vet. App. 238 (1999).  
In November 2014, the RO granted an extension of the period for a temporary total evaluation, to the extent that it assigned a temporary total rating from November 1, 2011 to April 30, 2012, followed by an evaluation of 20 percent effective May 1, 2012.  Since this grant did not constitute a full grant of the benefit sought, the   issue of entitlement to an extension of his temporary total rating based upon convalescence remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993
It does not appear that a Statement of the Case on the issue of entitlement to an extension of a temporary total rating based upon convalescence for right shoulder surgery was ever issued.  On remand, a Statement of the Case on this issue must be issued.  Stegall v. West, 11 Vet. App. 268 (1998).
With regard to the claim for an initial evaluation in excess of 10 percent for the Veteran’s left knee disability, a review of the most recent VA disability benefits questionnaire for the Veteran’s left knee, dated in August 2016, shows that the examiner did not provide an estimated loss of range of motion in degrees based on the Veteran’s reported flare-ups and their impact.  Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).  Rather, the examiner merely indicated that as the Veteran was not being examined during a flare-up, any loss of motion during such a flare-up would require a resort to speculation.  
In Sharp, the Court of Appeals for Veterans Claims (Court) explained that it must be clear that a VA examiner has “considered all procurable and assembled data” before stating that an opinion cannot be reached.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  When the record is unclear as to whether a VA examiner has done this—for example, “by obtaining all tests and records that might reasonably illuminate the medical analysis” - the Board must remand the matter for clarification or additional development.  
Second, the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered.  In other words, it must be apparent that the inability to provide an opinion without resorting to speculation “reflect[s] the limitation of knowledge in the medical community at large” and not a limitation—whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner.  Id.  As part of this obligation, a VA examiner should identify when specific facts cannot be determined. 
As the issue of entitlement to a TDIU is inextricably intertwined with one of the issues being remanded, it must be deferred.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  
The matters are REMANDED for the following action:
1.  Issue a Statement of the Case on the issue of entitlement to an extension of a temporary total rating based upon convalescence for right shoulder surgery, currently in effect from November 1, 2011 to April 30, 2012.  The Veteran should be advised that he may perfect his appeal of this issue by filing a Substantive Appeal within 60 days of the issuance of the Statement of the Case.  See 38 C.F.R. § 20.302 (b).
2.  Schedule the Veteran for a VA examination by an appropriate medical professional, to assess the current severity of the Veteran’s service-connected left knee disability, to include specific findings regarding pain on range of motion testing, and an estimation of functional loss.  
a) The examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable) for both the right and the left knee (i.e., the paired joint).  If the examiner is unable to conduct the required testing, or concludes testing is not necessary, he or she should clearly explain why that is so. 

b) The examiner must provide an opinion as to the severity of the Veteran’s left knee symptoms, and how those symptoms impact the Veteran’s occupational functioning. 

c)  With regard to flare-ups, if the examination does not take place during a flare-up, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups from the Veteran.  The examiner should also record the Veteran’s complaints of symptoms with regard to any functional loss with repetitive use. 

d) The examiner must express an opinion as to whether or not the Veteran’s left knee functional ability is significantly limited during flare-ups, or with repetitive use, and those determinations should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups or with repetitive use. 
(Continued on the next page)
 

e)  A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
 
CAROLYN L. KRASINSKI
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T.S.E., Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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